Decision Content

HER MAJESTY THE QUEEN as represented by THE MINISTER OF INDIAN
AFFAIRS AND NORTHERN DEVELOPMENT and

THE ATTORNEY GENERAL OF CANADA

Appellants

and

HARRY DANIELS, GABRIEL DANIELS,

LEAH GARDNER, TERRY JOUDREY and

THE CONGRESS OF ABORIGINAL PEOPLES

Respondents

and

ATTORNEY GENERAL OF ALBERTA,

MÉTIS SETTLEMENTS GENERAL COUNCIL, GIFT LAKE MÉTIS SETTLEMENT,

MÉTIS NATIONAL COUNCIL,

MANITOBA MÉTIS FEDERATION, and

MÉTIS NATION OF ONTARIO

Interveners

Heard
at Ottawa, Ontario, on October 29 and 30, 2013.

Judgment
delivered at Ottawa, Ontario, on April 17, 2014.

REASONS FOR JUDGMENT BY: DAWSON J.A.

CONCURRED IN BY: NOËL
J.A.

TRUDEL
J.A.

Date: 20140417

Docket:

A-49-13

Citation: 2014 FCA 101

CORAM:

NOËL J.A.

DAWSON J.A.

TRUDEL J.A.

BETWEEN:

HER MAJESTY THE QUEEN as represented by THE MINISTER OF INDIAN
AFFAIRS AND NORTHERN DEVELOPMENT and

THE ATTORNEY GENERAL OF CANADA

Appellants

and

HARRY DANIELS, GABRIEL DANIELS,

LEAH GARDNER, TERRY JOUDREY and

THE CONGRESS OF ABORIGINAL PEOPLES

Respondents

and

ATTORNEY GENERAL OF ALBERTA,

MÉTIS SETTLEMENTS GENERAL COUNCIL, GIFT LAKE MÉTIS SETTLEMENT,

MÉTIS NATIONAL COUNCIL,

MANITOBA MÉTIS FEDERATION, and

MÉTIS NATION OF ONTARIO

Interveners

REASONS
FOR JUDGMENT

Table of Contents(by paragraph
numbers)

1.
Introduction
1-5

2. Factual Background
6

(i) The respondents
7-9

(ii) The nature of
the action below 10-12

3. Issues
Raised on the Appeal and Cross-Appeal 13-15

4. Applicable legislation

(i) The
Constitution Act, 186716

(ii) The
Constitution Act, 1982
17

5. Federal Court Decision 18-21

(i) The definitional
issue 22-25

(ii) The Judge’s
Findings of Fact 26-30

(a) Pre-Confederation
Era
31

(b) Confederation 32-37

(c) Post-Confederation
Era 38-40

(d) Other
Examples – “Half-breeds” and Section 91(24) 41-47

(e) Modern
Era 48-49

(f) Treaties
and Half-breeds 50-51

(iii) The Judge’s
Analysis 52-61

6. Consideration of the Issues

(i) Did the Federal Court err by issuing the declaration in
respect of either the Métis or non-status Indians?

(a) Applicable Legal Principles 62-64

(ii) Did the Federal
Court err by issuing the declaration in respect of the Métis?

(a) Did
the declaration lack practical utility? 65-73

(iii) Did the Federal Court err by issuing the declaration in
respect of non-status Indians?

(a) Did the declaration lack practical utility? 74-79

(iv)Is the declaration as it relates to the
Métis unfounded in fact and law?

(a) Standard
of review
80

(b) The
asserted errors 81-82

(c) Did the Judge adopt a definition of Métis that is
contrary to

history and
the jurisprudence of the Supreme Court? 83-86

Powley,
Cunningham and Manitoba Métis Federation 87-111

Blais112-124

(d) Did the Judge fail to follow the approach to
constitutional analysis mandated by the Supreme Court? 125-128

Applicable principles of statutory interpretation 129

The Judge’s approach
130-148

(e) Did the Judge grant a declaration that will create
uncertainty

about the
respective jurisdiction of Parliament and the provincial legislatures?
149-150

(f) Conclusion as to the validity of the declaration as it
relates

to the Métis 151

(v) The cross-appeal: Did the Judge err by refusing to issue
the second

and third
declarations?

(a) The standard of review
152

(b) The asserted errors 153-155

(c) Did the Judge err in refusing the second and
third

declarations?
156-158

7. Conclusion and costs
159-161

DAWSON J.A.

1. Introduction

[1]The issue raised in this appeal is whether the
federal government has jurisdiction over Métis and non-status Indians pursuant
to section 91(24) of the Constitution Act, 1867. For reasons reported as
2013 FC 6, [2013] 2 F.C.R. 268, a judge of the Federal Court declared that
“those persons who are Métis and those who are non-status Indians as set forth
in the Reasons for Judgment are ‘Indians’ within the meaning of the expression
‘Indians and Lands reserved for the Indians’ contained in s 91(24) of the Constitution
Act, 1867.”

[2]In this appeal, the Crown appellants ask that
the declaration be set aside. This position is supported by the Attorney
General of Alberta, an intervener. The respondents, who were the plaintiffs
below, ask that the appeal be dismissed with costs. As well, the respondents cross-appeal
from the decision of the Federal Court not to grant two additional declarations
sought by them at trial. The respondents ask that the following two
declarations be granted:

(i)The Crown in right of Canada owes a fiduciary
duty to Métis and non-status Indians as Aboriginal peoples (second
declaration).

(ii)The Métis and non-status Indian peoples of Canada have the right to be consulted and negotiated with, in good faith, by the federal
government on a collective basis through representatives of their choice
respecting their rights, interests and needs as Aboriginal peoples (third
declaration).

[3]The respondents’ position with respect to the
appeal and cross-appeal is supported by two interveners: the Métis Settlements
General Council and the Métis National Council. The intervener Gift Lake Métis
Settlement asks that both the appeal and the cross-appeal be dismissed. The
intervener the Manitoba Métis Federation asks that the appeal be dismissed, but
that the Judge’s declaration be restated to separate reference to non-status
Indians from the declaration. It would restate the declaration as follows: “The
Court declares that the Métis are included as ‘Indians’ within the meaning of s.
91(24) of the Constitution Act, 1867.” The intervener the Métis Nation
of Ontario asks that the appeal be dismissed and that the Court decline to
define the Métis other than to say that the individuals included as Métis
within section 91(24) are the members of the Métis peoples of Canada.

[4]The appellants and the Attorney General of
Alberta also ask that the cross-appeal be dismissed.

[5]For the reasons that follow, I would allow the
appeal in part by deleting reference in the declaration to non-status Indians
and would restate the declaration as proposed by the Manitoba Métis Federation.
I would dismiss the cross-appeal, reserving the issue of the costs of the
appeal and cross-appeal between the appellants and respondents.

2. Factual
Background

[6]The facts are carefully and extensively reviewed
in the reasons of the Federal Court. The following brief review is sufficient
to situate the appeal and the cross-appeal in their context.

(i) The
respondents

[7]The four individual respondents are, or were,
closely connected to their Aboriginal cultures.

[8]The late Harry Daniels identified as Métis and
was a president of the Congress of Aboriginal Peoples. He was a recognized
advocate for Métis rights. Gabriel Daniels is his son, and he also identifies
as Métis. He testified as to his Métis cultural roots, his involvement in Métis
gatherings and his long involvement in First Nations’ activities. Leah Gardner
is a non-status Indian from Ontario. She identifies as a Métis without status,
but prefers “Anishanabe without status”. She testified that she participates in
both Métis and First Nation cultural events. Terry Joudrey is a non-status
Mi’kmaq Indian from Nova Scotia. He testified he uses his Aboriginal Treaty
Rights Association membership card as if it were a licence to hunt and fish,
and that he associates those activities with native traditions. All of the
individual respondents sued in the Federal Court in their personal capacities.

[9]The respondent Congress of Aboriginal Peoples is
a corporation which represents Métis and non-status Indian peoples throughout Canada. As the trial judge noted, it is not the sole recognized voice of the Métis peoples.
The Congress of Aboriginal Peoples sued as a public interest plaintiff.

(ii) The
nature of the action below

[10]In their claim, the respondents did not
challenge any specific legislation or government action. Rather, they sought
resolution of the issue as to which of Canada or the provinces have
jurisdiction over the Métis and non-status Indian peoples.

[11]The respondents asserted, and the Judge accepted
(reasons, paragraphs 86 to 110) that provincial and federal governments treat
the Métis as “political footballs”. The Judge found that “the political/policy
wrangling between the federal and provincial governments has produced a large
population of collaterally damaged [Métis and non-status Indians]”. He further
found that, as a result, Métis and non-status Indians have been deprived of
programs, services and intangible benefits all governments recognize are needed
(reasons, paragraph 108).

[12]The Judge concluded that the resolution of
constitutional responsibility “has the potential to bring clarity to the
respective responsibilities of the different levels of government” (reasons,
paragraph 110).

3. Issues
Raised on the Appeal and Cross-Appeal

[13]In the appeal, the appellants do not allege that
the Judge committed any palpable and overriding error in his numerous findings
of fact. They assert three errors of law:

1.The Judge erred in law by granting a declaration
that lacked any practical utility.

2.The Judge erred because the declaration is
unfounded in fact and law.

3.The Judge erred by attempting to define the core
meaning of the constitutional term “Indian” in the abstract.

[14]In the cross-appeal, the respondents assert that
the Judge erred in principle by failing to grant the second and third
declarations.

[15]I would frame the issues to be decided as
follows:

1. Did the Federal Court err by issuing the declaration in
respect of the Métis?

2. Did the Federal Court err by issuing the declaration in
respect of non-status Indians?

3. Is the declaration as it relates
to the Métis unfounded in fact and law?

4. Did the Federal Court err by failing to issue the second
and third declarations?

4. Applicable
legislation

(i)The Constitution Act, 1867

[16]This is a division of powers case about the
interpretation of section 91(24) of the Constitution Act, 1867:

91. It shall be lawful for the
Queen, by and with the Advice and Consent of the Senate and House of Commons,
to make Laws for the Peace, Order, and good Government of Canada, in relation
to all Matters not coming within the Classes of Subjects by this Act assigned
exclusively to the Legislatures of the Provinces; and for greater Certainty,
but not so as to restrict the Generality of the foregoing Terms of this
Section, it is hereby declared that (notwithstanding anything in this Act)
the exclusive Legislative Authority of the Parliament of Canada extends to
all Matters coming within the Classes of Subjects next hereinafter
enumerated; that is to say,

[18]The Judge began his reasons by framing the issue
as whether non-status Indians and Métis are identified as “Indians” under
section 91(24) of the Constitution Act, 1867. He then went on to set out
the applicable legislation, describe the declarations sought by the plaintiffs,
and summarize the basis of the plaintiffs’ claim and the defendants’ defence.
After giving a summary of his conclusions the Judge turned to the first issue
to be decided.

[19]The first issue to be decided was whether the
plaintiffs had established a basis on which declaratory relief could be
granted. The defendants argued that the requested declarations should not be
granted because the plaintiffs raised a theoretical issue which, if decided,
would not resolve anything and would lead to further litigation. The Court was
urged not to exercise its discretion to grant any of the requested
declarations.

[20]The Judge found that the record was replete with
references to the jurisdictional uncertainty between Canada and the provinces
over which level of government had jurisdiction to legislate with respect to
Métis and non-status Indians. Canada had sometimes accepted, but sometimes
rejected, the view that it had jurisdiction under section 91(24) (reasons,
paragraph 55). The Judge concluded that the Court had jurisdiction over the
case, the question before the Court was real and the persons raising the issue
had a real interest to raise it (reasons, paragraph 82). Thus, the Judge
decided that he would determine the case on its merits. He would not dismiss
the action on the basis of the discretionary nature of declaratory relief. The
Judge also rejected the defendants’ argument that the plaintiffs’ case was a
private reference which should not be heard. The Judge highlighted the
prejudice both the plaintiffs and the defendants would suffer if 12 years of
publicly funded litigation was dismissed without adjudication on the merits
(reasons, paragraphs 77 to 80).

[21]Having decided to determine the case on its
merits it was necessary for the Judge to decide what was meant by the terms
“non-status Indians” and “Métis” for the purpose of the division of powers
analysis.

(i) The definitional issue

[22]The Judge began his analysis of the definitional
issue by considering what was meant by the term “non-status Indians”. At
paragraph 116 of his reasons he noted that non-status Indians as a group must
have two essential qualities: they must be Indians and have no status under the
Indian Act, R.S.C. 1985, c. I-5. He considered that in the modern era
the difficulty of definition had been addressed in part because in 1980 the
federal government defined the core group of Métis and non-status Indians as a
group of native people who maintained a strong affinity for their Indian
heritage without possessing Indian status (reasons, paragraph 117). Ultimately,
the Judge concluded that the group of people characterized as “non-status
Indians” are “those to whom status could be granted by federal legislation.
They would be people who had ancestral connection not necessarily genetic to
those considered as ‘Indians’ either in law or fact or any person who
self-identifies as an Indian and is accepted as such by the Indian community,
or a locally organized community, branch or council of an Indian association or
organization [with] which that person wishes to be associated” (reasons,
paragraph 122).

[23]The Judge next considered what was meant
by the term “Métis”. He noted that in R. v Powley, 2003 SCC 43, [2003] 2 S.C.R. 207the Supreme Court did not attempt to define the outer limits of the
Métis people but instead set out a method for determining who is a member of
the Métis people for the purpose of section 35 of the Constitution Act, 1982.
The Supreme Court determined that a Métis is a person of mixed Aboriginal and
non-Aboriginal ancestry who has some ancestral family connection (not
necessarily genetic), identifies himself or herself as Métis, and is accepted
by the Métis community or locally organized community branch, chapter or
council of a Métis Association or organization with which that person wishes to
be associated. The Judge was concerned, however, that the decision in Powley
involved the collective right to hunt. In the Judge’s view this made it
critical that an individual be accepted by the Métis community. For the purpose
of section 91(24), the Judge sought to capture the situation where there is no
such community branch, chapter or council but an individual nonetheless participates
in Métis cultural events or activities which show objectively how that person
subjectively identifies himself or herself as a Métis (reasons, paragraphs 127,
128).

[24]In the result, for the purpose of the
declarations which the plaintiffs sought, the Judge decided that the Métis are
“a group of native people who maintained a strong affinity for their Indian
heritage without possessing Indian status” (reasons, paragraphs 130 and 117).

[25]In the Judge’s view these definitions did
not decide the “outer limits” of Métis or non-status Indian peoples. They
simply established a framework for inclusion under section 91(24) (reasons,
paragraph 121).

(ii) The Judge’s Findings of Fact

[26]The remainder of the Court’s
decision dealt with whether Métis and non-status Indians, as defined by the
Judge, were “Indians” for the purpose of section 91(24) of the Constitution
Act, 1867. To do this, the Judge considered the evidence adduced from
expert historical witnesses and witnesses knowledgeable about Aboriginal-governmental
affairs.

[27]The main historical experts
were Dr. William Wicken and Ms. Gwynneth Jones, both called by the plaintiffs,
and Dr. Stephen Patterson, called by the defendants. All were found by the
Judge to be credible, well-informed and helpful. However, where Dr. Wicken’s
evidence conflicted with that of Dr. Patterson, Dr. Wicken’s evidence was
“generally accepted” as being more relevant to the issue to be determined
(reasons, paragraph 150). Mr. Sébastien Grammond, called by the plaintiffs, and
Dr. Alexander von Gernet, called by the defendants, were also called as expert
witnesses, but the Judge found their testimony to be less helpful, particularly
that of Dr. von Gernet whose evidence was given “considerably less weight
[…] where it contradict[ed] other experts” (reasons, paragraph 182).

[28]With respect to Aboriginal-governmental
affairs, the Judge primarily looked to the evidence of Mr. Ian Cowie who held a
senior federal government position at the Department of Indian Affairs and
Northern Development, and was also a former Deputy Minister of Indian and
Native Affairs for Saskatchewan, and Dr. John Leslie, a former manager of the
Claims and Historical Research Center at the Department of Indian Affairs and
Northern Development (both witnesses were called by the plaintiffs). Their
evidence was found to be helpful and credible with Mr. Cowie providing an
insider’s view of modern native rights policy development, and Dr. Leslie
acting as a “business records identifier” a role the Judge noted would not have
been necessary if the defendants had admitted the provenance of a number of
relevant documents (reasons, paragraph 138).

[29]The Judge divided the
historical evidence into six categories which he described as:

(a) Pre-Confederation Era

(b) Confederation

(c) Post-Confederation Era

(d) Other Examples – “Half-breeds” and section 91(24)

(e) Modern Era

(f) Treaties and Half-breeds

[30]The Judge’s significant
findings made in respect of each category are summarized below.

(a) Pre-Confederation
Era

[31]Evidence from this era was
directed to what the term “Indian” meant at the time and therefore was likely
the meaning that the Fathers of Confederation had in mind when power over
Indians was assigned to the federal government (reasons, paragraph 183). The
Judge found as a fact that:

(i)The experts treated the situation
of the Mi’kmaq in Nova Scotia as being representative of the situation
generally in Atlantic Canada (reasons, paragraph 211).

(ii)At least by 1864, most of
the Mi’kmaq population was of
mixed blood of varying degrees (reasons, paragraph 216).

(iii)Notwithstanding their mixed
blood component, the Mi’kmaq were
treated as “Indians” and their preference to “wander”
had an impact on the creation of the federal Indian Power (reasons, paragraph
219).

(iv)There was a diversity of
people in Atlantic Canada with varying degrees of Aboriginal connections who
were contemplated by the word “Indian” (reasons, paragraph 218).

(v)Those seeking a power in
relation to “Indians” would have needed a broad power (reasons, paragraphs 253
and 323) which included authority over relocation, settlement, assistance,
education, economic reform, social reform and “civilization” (reasons,
paragraphs 262 and 323).

(vi)Prior to Confederation, the
term “Indian” was understood by the Fathers of Confederation to include “half-breeds”
(reasons, paragraphs 265 and 287) and one did not have to live on a reserve or
in an Indian community to be an “Indian” (reasons, paragraphs 272 and 323).

(vii)The Fathers of Confederation
would have intended the word “Indian” in the Constitution and the power which
went with it, to be a broad power capable of dealing with the diversity and
complexity of the native population, whatever their percentage mix of blood
relationship, their economies, residency or culture (reasons, paragraphs 273,
308, 318, and 323).

(viii)Canada, when acquiring the
British power over Indian Affairs would need to be able to, and intended to,
address a number of issues including the recognition, pacification, control and
dealing with interest in the land of Métis who were seen as distinct in some
respects from “Indians”, who did not live with Indians, who were not
necessarily members of Indian tribes or who did not necessarily follow an
“Indian” way of life (reasons, paragraph 317).

(ix)The Fathers of Confederation
intended to create a constitutional power which was broader than the statutory
definition of Indian (reasons, paragraphs 322 and 323).

(b) Confederation

[32]The Judge found as a fact
that the purposes of Confederation relevant to this case are (reasons,
paragraph 341):

(i)The expansion of British
North America into the Northwest and towards British Columbia in response to
the pre-Confederation economic and political crisis.

(ii)The eventual absorption of
the Northwest and British Colombia into Confederation.

(iii)Integration of the Atlantic colonies
(Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland) with Central Canada. The intent to absorb Newfoundland, Prince Edward Island and British Columbia as well as Rupert’s Land and the Northwest Territories is seen in section
146 of the British North America Act, 1867.

(iv)To settle the Northwest with
farms which would become a new market for Central Canada manufacturing.

(v)The maintenance in the East
of the current population and the prevention of out-migration.

(vi)The settlement of British Columbia, particularly Vancouver Island and the Lower Mainland.

(vii)The building of a
transcontinental railway which was essential to creating a national economy and
to settling the unsettled areas, particularly the Northwest.

[33]The building of the
transcontinental railway was particularly integral to the Fathers’ of
Confederation intentions at the time of Confederation (reasons, paragraph 342).

[34]Finally, the Judge found
(reasons, paragraph 351) that:

(i)In the Northwest in
particular, a large nomadic native population potentially stood in the way of
expansion, settlement and railway construction.

(ii)The relationship between the
purpose of Confederation (in terms of settlement and expansion) and the native
people was critical to Confederation.

(iii)The idea of railway construction
and federal responsibility for “Indians” were interconnected.

(iv)The Fathers of Confederation
needed to be able to reconcile native people to the building of the railway and
other measures which the federal government would have to take.

(v)Maintaining peaceful
relations with the “Indians” would protect the railway from attack.

(vi)Natives needed to be
reconciled with the expansion westward to ensure the larger development of the
nation.

(vii)The lands occupied by
natives would have to be surrendered in some fashion.

[35]The Judge went on to accept
the evidence of the plaintiffs’ expert historians on the purposes of section
91(24) from the viewpoint of those creating the power (reasons, paragraph 354).

[36]In Dr. Wicken’s view, the
purpose of section 91(24) was:

(i)To control native people and
communities where necessary to facilitate development of the Dominion.

(ii)To honour the obligations to
natives that the Dominion inherited from Britain while extinguishing interests
that stood in the way of the objects of Confederation.

(iii)Eventually to “civilize” and
assimilate native people (reasons, paragraph 353).

[37]In Ms. Jones’ view, the
purpose of section 91(24) was integral to the central government’s plan to
develop and settle lands in the North-Western Territory. The Canadian Government
at Confederation inherited principles and practices of Crown-Aboriginal
relations that had been embedded in British North America for well over 100
years. These included the recognition of Aboriginal title in the “Indian
territories” and protocols recognizing the relationship between Aboriginal
nations and the Crown. Canada also inherited a British policy of “civilization”
of the Indians, in place since the 1830s (reasons, paragraph 353).

(c) Post-Confederation
Era

[38]The Judge found that it was
critical to the newly confederated Canada to create an environment of safety
and security for settlers. Part of creating that environment was the
extinguishment of Indian land claims; Canada required possession of lands for
the construction of the transcontinental railway and also for the settlement
and development of the West (reasons, paragraph 359).

[39]The Judge also found that
the Aboriginal population was mixed, varied and interrelated. It was not
possible to draw a bright line between half-breeds/Métis and Indians (reasons,
paragraph 381). Immediately post-Confederation, persons referred to as
half-breeds were considered to be closely associated with “Indians” and part of
the problem that needed to be addressed to permit expansion, settlement and the
building of the railway, all as contemplated by the British North America
Act, 1867 (reasons, paragraph 412).

[40]Ultimately, the Judge
concluded that the early post-1867 evidence established that half-breeds were
considered to be at least a subset of a wider group of Aboriginal-based people
called “Indians”. What the evidence showed was that Canada was prepared to
exercise jurisdiction over half-breeds, to use Indian power like methods and to
justify such exercises of jurisdiction as the exercise of the section 91(24) power
coupled with the power to control Dominion lands (reasons, paragraph 420).

(d) Other
Examples - “Half-breeds” and Section 91(24)

[41]Under this heading the Court
looked to a number of post-Confederation events that connected the Métis to
section 91(24).

[42]The Judge began by
considering the request, made prior to the Treaty 3 negotiations, that 15 families
of half-breeds living on the Rainy River be included in the treaty. Thereafter,
the Indian Act, 1876 was passed and the Indian Affairs branch took the position
that the department could not “recognize separate Half breeds bands”. As a
result, the Rainy River half-breeds were given a reserve, but were required to
join a First Nations band for which an adjacent reserve had been surveyed. The
Judge found that this adhesion to Treaty 3 was an instance where the federal
government treated the half-breeds/Métis group as if it had a claim to Indian
title, and gave the group a reserve as part of the surrender of that claim. It
was a further instance of the federal government exercising jurisdiction over a
Métis group based not on their connection to European ancestors, but on their
connection to their Indian ancestry (reasons, paragraphs 424, 430, and 434).

[43]The Judge next considered
the petition made in 1895 by Father Lacombe to the federal government that
destitute “Half-breeds” receive land on which to settle. A reserve was proposed,
consisting of four townships to be established, together with an industrial
school. The proposal was approved, and a reserve and industrial school were
established at St. Paul de Métis in Alberta. The reserve was established
exclusively for Métis; title to the reserve was held by the federal Crown. The
Judge found that this project was not a policy accident. Rather, it was the use
of powers similar to or arising from those exercised in regard to “Indians”
under section 91(24) (reasons, paragraphs 437, 439, and 441).

[44]Next, the Judge considered
federal liquor policy. In 1894, Parliament amended the Indian Act to
broaden the specific provision dealing with persons who sold intoxicating
liquor to an “Indian”. The problem Parliament sought to resolve was the
difficulty encountered by the North-West Mounted Police in distinguishing
between “Half-breeds and Indians in prosecutions for giving liquor to the
latter”. The provision against the sale of intoxicating liquor was amended by
adding “… shall extend to and include any person … who follows the Indian mode
of life”. The Judge found this policy again confirmed that the federal
government exercised jurisdiction over Métis and non-status Indians regardless
of mixed ancestry, residence, membership or purported membership in a band or
tribe (reasons, paragraphs 444, 446, 447, and 451).

[45]The 1958 amendment to the Indian
Act, dealing with “half-breeds” whose ancestors took scrip was found by the
Judge to be another example of federal legislation affecting Métis as a group
or class which was founded on section 91(24) (reasons, paragraphs 453, 454, 457,
and 458).

[46]Finally, the Judge accepted
numerous examples of the federal government exercising jurisdiction over a
broad range of persons with native ancestry, notwithstanding their lack of
status under the Indian Act. One example the Court referenced was “red
ticket Indians” who were excluded from the Indian Act in 1951 and later
readmitted in 1985. Another example was the inclusion in 1984 of Aboriginal
persons under the Indian Act who had been enfranchised (and therefore
not given status) when Newfoundland and Labrador joined Confederation (reasons,
paragraphs 460, 461 and 466 to 467).

[47]The Judge found that this
exercise of jurisdiction over non-status Indians and half-breeds, including
Métis was based upon the understanding and acceptance by the Euro-Canadian
population that the federal power could exercise jurisdiction over this wide
range of people as “Indians”. In the Judge’s words, the “foregoing, established
by conduct, the meaning of ‘Indian’ within s 91(24)” (reasons, paragraph
468).

(e) Modern
Era

[48]The Court’s overview of
Modern Era evidence primarily involved examining government documents which set
out various positions as to whether section 91(24) extended to Métis and
non-status Indians. The Judge cautioned, however, that this evidence was of
less relevance because his determination of the meaning and scope of section
91(24) was based principally on the analysis of pre- and post-Confederation
facts and the manner in which the federal government dealt with Métis and
non-status Indians (reasons, paragraph 470).

[49]Based on his review of the evidence
the Judge concluded that post-patriation of the Constitution, the trend was for
the federal government to generally accept that it had power to legislate in
all domains in respect of Métis and non-status Indians under section 91(24) of
the Constitution Act, 1867 (reasons, paragraphs 492 and 493). The
government’s position hardened in or about 1984, and its position became that
section 91(24) did not confer jurisdiction to legislate in respect of Métis and
non-status Indians (reasons, paragraphs 501 and 507). Despite this position,
the government continued to move certain Aboriginal people in and out of Indian
status, in apparent recognition and exercise of its jurisdiction under section
91(24) (reasons, paragraph 512).

(f) Treaties
and Half-breeds

[50]The last historical evidence
related to the admission by both parties that half-breeds were from time to
time either offered treaty protection in lieu of land grants, or were moved in
and out of treaty for various reasons. In the Judge’s view, the importance of
this evidence was that receiving treaty protection and benefits is directly
related to being an “Indian” for purposes of the Constitution. Treaties are not
made or implemented with other groups in Canadian society (reasons, paragraph
513).

[51]Ultimately, the Judge found
that the weight of the evidence was that Métis were both included and excluded
from recognized Indian status in accordance with changing government policies.
The Judge further concluded that the federal government adopted these flexible
policies because it could and that “it was assumed, implied and accepted that
the federal government could do so because Métis were ‘Indians’ under s 91(24)”
(reasons, paragraph 525).

[53]Applying the purposive
approach in the light of the decision in Reference re: British North America
Act, 1867 (U.K.), s. 91, [1939] S.C.R. 104 (Re Eskimo Reference),
the Judge accepted that the purposes of the Indian Power included:

•The intent to control all
people of Aboriginal heritage in the new territories of Canada.

•Assisting with the expansion
and settlement of the West, including the construction of the transcontinental
railway.

[54]Absent a broad power over a
broad range of people sharing a native hereditary base, the federal government
would have had difficulty accomplishing the expansion and settlement of the
West (reasons, paragraph 566).

[55]Relying upon Canard v.
Canada (Attorney General), [1976] 1 S.C.R. 170, 52 D.L.R. (3d) 548 at page
207 of the Supreme Court Reports, the Judge viewed section 91(24) as a
race-based power (reasons, paragraph 568); both non-status Indians and Métis
were found to be connected to the racial classification Indian by way of
marriage, filiation and most clearly, intermarriage (reasons, paragraph 531).
In the Judge’s further view, the single most distinguishing feature of
non-status Indians and Métis is that of their “Indianness” not language,
religion or connection to European heritage (reasons, paragraph 532).

[56]The Judge then distinguished
R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236 on the ground that in its
decision the Supreme Court expressly left open for another day the question of
whether the term “Indians” in section 91(24) includes the Métis (reasons,
paragraphs 573 to 574). The Judge also found that the decision in Blais was
limited in Reference Re Same Sex Marriage, above, as a decision based on
a constitutional agreement and not a head of power, which involves different
considerations and interpretative principles: in particular, a purposive, progressive
approach (reasons, paragraph 578).

[57]Finally, the Judge rejected
the defendants’ argument that the Métis could not be included within section
91(24) because they were separately enumerated in section 35 of the Constitution
Act, 1982. The Judge concluded that while Inuit are also separately
enumerated in section 35, there was no reason to believe that Re Eskimo
Reference was no longer sound law. Further, in the Judge’s view the Supreme
Court’s recent decision in Alberta (Aboriginal Affairs and Northern
Development) v. Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670 supported the
distinction between section 91(24) and section 35 (reasons, paragraphs 593 to
598).

[58]Ultimately the Judge
concluded that the “case for inclusion of non-status Indians in s 91(24)
is more direct and clear than in respect of Métis. The situation of the Métis
is more complex and more diverse and must be viewed from a broad perspective.
On balance, the Court also concludes that Métis are included in s 91(24)”
(reasons, paragraph 600). As a result, the plaintiffs were granted a
declaration to that effect.

[59]The Judge then went on to
consider the second and third declarations sought by the plaintiffs.

[60]In respect of the
declaration that the federal Crown owed a fiduciary duty to the Métis and
non-status Indians, the Judge noted that there was no dispute that the Crown is
in a fiduciary relationship with Aboriginal people pursuant to section 35 of
the Constitution Act, 1982. This duty also flowed from the declaration
that Métis and non-status Indians are “Indians” within section 91(24),
because such relationships engage the honour of the Crown. However, the Judge
noted that not every aspect of a fiduciary relationship results in a fiduciary
duty. It was problematic that the declaration sought by the plaintiffs was made
without reference to what duty was breached. In the absence of such
specification, the second declaration would have no utility, and the Judge was
not prepared to make a general statement about fiduciary duties. Thus, the Judge
refused to grant the second declaration (reasons, paragraphs 602 to 609).

[61]Finally, the Judge also found
insufficient context to make any declaration on Canada’s duty to negotiate and
consult with the Métis and non-status Indians. Without reference to a specific
matter to be consulted on, or negotiated with, the Judge concluded that a
general declaration would be abstract and not useful. Thus, the third
declaration was also refused (reasons, paragraphs 610 to 617).

6. Consideration
of the Issues

(i) Did the Federal Court err by issuing the declaration in
respect of either the Métis or non-status Indians?

(a) Applicable
Legal Principles

[62]Declaratory relief is a discretionary remedy (Solosky
v. Her Majesty The Queen, [1980] 1 S.C.R. 821 at pages 832 to 833).
The test for appellate review of judicial discretion is whether the judge at
first instance gave sufficient weight to all of the relevant considerations (MiningWatch
Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6 at
paragraph 43).

[63]In exercising its discretion, a court is to be
influenced by two factors: the utility of the remedy, if granted, and whether
the declaration will settle a real issue between the parties (Solosky,
at page 832).

It does not
relate to the constitutionality of actual or proposed legislation.

It does not
settle the issue of constitutional responsibility because section 91(24)
does not create responsibilities or obligations to legislate, nor does it
compel the federal government to provide the Métis access to the same
programs and services as status Indians.

With or without
the declaration, the federal government has the authority to extend
programs and resources to the Métis under the federal spending power.

[66]I begin consideration of this issue by noting
that the appellants do not allege that the Judge erred in law in setting out
the factors which were to guide his discretion. Instead, they challenge his
exercise of discretion on the ground that the declaration lacks practical
utility. It follows that this Court may only intervene if the Judge gave
insufficient weight to all of the relevant considerations. For the four reasons
that follow, the appellants have failed to establish any reviewable error in
the Judge’s exercise of discretion not to withhold declaratory relief in
respect of the Métis.

[67]First, I accept the submission of the
respondents that the first declaration is similar to the declaration granted by
the Supreme Court of Canada in Manitoba Métis Federation Inc. v. Canada
(Attorney General), 2013 SCC 14, 291 Man. R. (2d) 1.

[68]In Manitoba Métis Federation, the
plaintiffs advanced a collective claim for declaratory relief. The majority of
the Court noted that, in an appropriate case, a declaration may be granted in
aid of extra-judicial relief. The majority of the Court went on to find that in
the case before it the plaintiffs sought declaratory relief in order to assist
them in extra-judicial negotiations with the Crown in pursuit of the
overarching constitutional goal of reconciliation reflected in section 35 of
the Constitution Act, 1982. Ultimately, the majority concluded that the
plaintiffs were entitled to a declaration that the federal Crown had failed to
implement the land grant provision contained in section 31 of the Manitoba Act, 1870 in accordance with the honour of the Crown.

[69]It follows from this decision that, as a matter
of law, a challenge to the constitutionality of actual or proposed legislation
is not a condition precedent to the issuance of a declaration. Similarly, a
declaration does not lack practical utility simply because it does not create
an enforceable obligation to enact legislation.

[70]Second, the appellants’ argument that the
declaration lacks practical utility is contradicted by findings of fact made by
the Judge that are not challenged on appeal. Those findings include:

The federal
government acknowledged:

The Métis and non-status Indian people, lacking even the protection of
the Department of Indian Affairs and Northern Development, are far more exposed
to discrimination and other social disabilities. It is true to say that in the
absence of Federal initiative in this field they are the most disadvantaged of
all Canadian citizens.

(reasons,
paragraph 26)

The federal
government largely accepted constitutional jurisdiction over the Métis
until the mid-1980s, when matters of policy and financial concerns changed
that acceptance (reasons, paragraph 27).

The Royal
Commission on Aboriginal Peoples recognized the existence of a real
jurisdictional issue and called for the federal government to bring a
reference, particularly in respect of the Métis, to determine whether
section 91(24) applied to the Métis people (reasons, paragraph 57).

A government
document entitled “Royal Commission on Aboriginal Peoples Final Report
Comprehensive Assessment for Cabinet Purposes” concluded that it would be
premature to embrace the Commission’s recommendation to negotiate Métis
claims to lands and resources in the absence of a higher court decision
on, among other things, the division of federal-provincial liability
(reasons, paragraph 58).

The Métis and
non-status Indians were not supplied with services while governments
fought about jurisdiction, principally a fight about who bore financial
responsibility (reasons, paragraphs 87 and 107).

The
political/policy wrangling between the federal and provincial governments
produced a large population of collaterally damaged Métis and non-status
Indians. As a result, they are deprived of programs, services and
intangible benefits all governments recognize are needed (reasons,
paragraph 108).

The resolution
of constitutional responsibility has the potential to bring clarity to the
respective responsibilities of the different levels of government
(reasons, paragraph 110).

The recognition
of Métis as Indians under section 91(24) should accord a further level of
respect and reconciliation by removing the constitutional uncertainty
surrounding the Métis (reasons, paragraph 568).

[71]Third, the appellants’ assertion that the
federal government has authority to extend programs and resources to the Métis
under the federal spending power is undercut by the Judge’s finding of fact
that the absence of jurisdictional certainty has led to disputes between the
federal and provincial governments that have resulted in the Métis being
deprived of many necessary programs and resources.

[72]Finally, the respondents’ claim extended beyond
a claim to programs and services available under the federal spending power.
The claim put in issue, among other things, the failure of the federal
government to negotiate or enter treaties with respect to unextinguished
Aboriginal rights, or agreements with respect to other Aboriginal matters or
interests analogous to those treaties and agreements which the federal
government has negotiated and/or entered into with status Indians (Fresh as
Amended Statement of Claim, paragraph 26(d)). Related to this aspect of the
claim is the evidence, referenced above, that in the absence of higher court
authority on the division of federal-provincial liability, the federal
government was not prepared to negotiate Métis claims as recommended by the
Royal Commission on Aboriginal Peoples.

[73]For these reasons, the Judge did not issue a
declaration that lacked practical utility.

(iii)Did the Federal Court err by issuing the declaration in respect
of non-status Indians?

(a) Did the
declaration lack practical utility?

[74]In my respectful view, when granting the
declaration sought by the respondents as it related to non-status Indians, the
Judge failed to give adequate consideration to relevant factors that would have
led him to conclude the declaration lacked practical utility.

[75]Unlike the Métis, who are a distinct Aboriginal
people, it is common ground that non-status Indians are, broadly speaking,
Indians without status under the Indian Act. During oral argument,
counsel for the appellants conceded that the group of people characterized as
non-status Indians are those to whom status could be granted by federal
legislation, assuming the legislation did not exceed the limits of section
91(24). The definition as conceded by the appellants in oral argument
necessarily includes non-status Indians within that head of power.

[76]Parliament’s authority to grant or withhold
Indian status arises from section 91(24) (Canard,at page 207 of
the Supreme Court Reports). In order for Parliament to grant status under the Indian
Act, the person receiving status must be an Indian under the Constitution.
In that sense, the Indian Act does not exhaustively define who is an
Indian for the purposes of the division of powers; this is exemplified by
subsection 4(1) of the Indian Act, which withholds status from the
Inuit, notwithstanding their inclusion as “Indians” under section 91(24) (see Re
Eskimo Reference). Therefore, if Parliament can grant status to a person
under section 91(24), that person is necessarily an “Indian” within the meaning
of that section. In the result, a declaration that non-status Indians who could
be granted status through section 91(24) are Indians for the purpose of that
section is redundant and lacks practical utility.

[77]It is also inappropriate to grant a declaration
clarifying the limits of who may be considered an Indian notwithstanding their
exclusion from the Indian Act. The reasons for excluding people from
Indian status are complex, far-ranging and often unrelated to one another. As
the Judge noted at paragraph 115 of his reasons, one situation which created
non-status Indians were problems recording names during the treaty process and
fear of the treaty process itself. The result was that some names were not
recorded and those individuals were not recognized as having status under the Indian
Act. Other people were recognized as having status, but lost or gave up
that status for various reasons, such as the many Indian women who lost status by
marrying non-Aboriginal men.

[78]In that regard, to determine the limits of the
word “Indian” as it pertains to non-status Indians under the division of powers
it is necessary to analyze the reason each class of individual was excluded from
the Indian Act on a case-by-case basis. To the extent that exclusions,
or for that matter inclusions, are within the limits of section 91(24) of the Constitution
Act, 1867, they can be validly imposed. Otherwise such exclusions are
outside the limits of Parliament’s powers and are, therefore, invalid. This
question can only be answered after reviewing the particular reason for each exclusion.

[79]It follows that non-status Indians as a group do not
lend themselves to the declaration of general application sought by the
respondents. However the matter is considered, no purpose is served by
addressing the question on the generic basis proposed: the declaration lacks
utility and will not settle any issue between non-status Indians and the
federal government. In consequence, the Judge ought not to have granted the
declaration as it pertains to non-status Indians. I would therefore set aside
the declaration as it applies to non-status Indians.

(iv) Is the declaration as it relates to the Métis unfounded
in fact and law?

(a) Standard
of review

[80]The scope of section 91(24) is a question of law
reviewable for correctness (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2.
S.C.R. 235 at paragraphs 36 and 37). Determining if the definition of Métis
adopted by the Judge accords with Supreme Court jurisprudence is an extricable
question of law which is also reviewed on the correctness standard (R. v.
Hirsekorn, 2012 ABCA 21, 59 Alta. L.R. (5th) 209 at paragraph 14).

(b) The asserted errors

[81]In support of their submission that the declaration
is unfounded in fact and law, the appellants assert the Judge erred in:

adopting a
definition of Métis that is contrary to history and the jurisprudence of
the Supreme Court;

failing to
follow the proper approach to constitutional analysis mandated by the
Supreme Court; and

granting a
declaration that will create uncertainty about the jurisdiction of
Parliament and the provincial legislatures.

[82]For the reasons that follow, these assertions
are unfounded.

(c) Did the Judge adopt a definition of Métis that is
contrary to history and the jurisprudence of the Supreme Court?

[83]The parties disagree on how the Judge defined
Métis. In particular, the appellants argue the Judge defined Métis at paragraph
117 of his reasons, while the respondents submit this paragraph simply
described a definition offered in a federal government document; according to
the respondents, this description focused on the factual existence of a “core
group” of Métis and non-status Indians, and did not constitute a legal definition.

[84]At paragraph 130 of his reasons, the Judge
stated that the persons described in paragraph 117 of his reasons are
Métis for the purpose of the requested declarations. Paragraph 117, in turn, described
“a group of native people who maintained a strong affinity for their Indian
heritage without possessing Indian status. Their ‘Indianness’ was based on self
identification and group recognition.” In my opinion, paragraph 130 makes it
clear that the Judge defined Métis in these terms, at least for the purpose of
the relief he ultimately granted.

[85]In that regard, the appellants submit that the
Supreme Court has previously concluded that history demonstrates the Métis are
a distinct Aboriginal people, related to, but different from, their Indian forbearers.
The appellants further submit that by defining the Métis in relation to their
“Indianness”, the Judge’s definition is contrary to the notion of the Métis as
a distinct Aboriginal people and inconsistent with four decisions of the
Supreme Court: Powley, Blais, Cunningham, and Manitoba Métis Federation.

[87]To date, Powley is the leading authority
on the meaning of Métis. At paragraph 10 of its reasons the Supreme Court
concluded that the term Métis as used in section 35 of the Constitution Act,
1982 does not encompass all individuals with mixed Indian and European
heritage. Rather, it refers to distinctive peoples who, in addition to their
mixed ancestry, developed their own customs, way of life and recognizable group
identity separate from their Indian or Inuit and European forbearers. This was
reaffirmed in Cunningham and Manitoba Métis Federation.

[88]I agree with the appellants that the definition
advanced by the Judge is problematic. It lacks clarity and is open to at least three
interpretations, one of which I believe is contrary to history and the jurisprudence
of the Supreme Court.

[89]The first potential interpretation is that “Indian
heritage” meant descent from members of the “Indian race”.

[90]The second potential interpretation is that
advanced by the appellants: the Judge equated “Indian heritage” with “First
Nations heritage”. If that is what the Judge meant, it is, in my view, contrary
to history and the jurisprudence of the Supreme Court and must be rejected.

[91]The third potential interpretation is that by
using the phrase “Indian heritage” the Judge meant to refer to indigenousness
or Aboriginal heritage; broader concepts than First Nations heritage.

[92]I reject the interpretation that by using the
term “Indian heritage”, the Judge meant descent from members of the “Indian
race” for the following reasons.

[93]First, this interpretation is not consistent
with the entirety of the Judge’s reasons.

[94]Second, I acknowledge that historically section
91(24) was viewed to be a race-based head of power. Thus, in Canard at
page 207, Justice Beetz wrote that by using the word “Indians” in section
91(24), the Constitution Act, 1867 created a racial classification and
referred to a racial group that could receive special treatment.

[95]However, the Constitution is a living tree which,
by way of progressive interpretation, accommodates and addresses the realities
of modern life (Reference re Same-Sex Marriage, at paragraph 22). This
is particularly so when dealing with the heads of power enumerated in sections 91
and 92 of the Constitution Act, 1867 as they must continually adapt to
cover new realities (Reference re Same-Sex Marriage, at paragraph 30).

[96]I accept the submission of the Intervener Métis
Nation of Ontario that a progressive interpretation of section 91(24) requires
the term Métis to mean more than individuals’ racial connection to their Indian
ancestors. The Métis have their own language, culture, kinship connections and
territory. It is these factors that make the Métis one of the Aboriginal
peoples of Canada.

[97]This is reflected in the jurisprudence of the Supreme
Court of Canada in Powley, Cunningham and Manitoba Métis
Federation. In Powley, the Supreme Court did not exhaustively define
who were included in the term Métis for the purpose of section 35 of the Constitution
Act, 1982. However, as discussed above, the Court rejected the notion that
the term Métis encompassed all individuals with mixed Indian and European
heritage. Instead, the term refers to a distinctive group of people who developed
separate and distinct identities. The three broad factors that are the indicia
of Métis identity for the purpose of claiming Métis rights under section 35
were found to be: self-identification, ancestral connection and community
acceptance (Powley, at paragraphs 31 to 33).

[98]While these comments were made with reference to
section 35 of the Charter, individual elements of the Constitution are linked
to one another and must be interpreted by reference to the structure of the
Constitution as a whole (Reference re Secession of Quebec, [1998] 2
S.C.R. 217 at paragraph 50). In Reference re: Firearms Act (Can.), 1998
ABCA 305, 164 D.L.R. (4th) 513, at paragraph 35, the Alberta
Court of Appeal found there was no reason to exclude the Charter from an
interpretation of the division of powers provisions in the Constitution Act,
1867. I agree.

[99]It follows that the criteria identified by the
Supreme Court in Powley inform the understanding of who the Métis people
are for the purpose of the division of powers analysis. The Powley
criteria are inconsistent with a race-based identification of the Métis.

[100]I also conclude that, read fairly, the Judge did
not mean to equate “Indian heritage” with “First Nations heritage”. Instead,
what the Judge intended was that “Indian heritage” means indigenousness or
Aboriginal heritage. I reach this conclusion for the following reasons.

[101]First, this interpretation is consistent with
language used by the Judge in other passages in his reasons. To illustrate, at
paragraph 420, referring to the post-1867 historical evidence, the Judge noted
the evidence “shows that half-breeds were considered as at least a subset of a
wider group of aboriginal-based people called ‘Indians’.” This is explicit
recognition by the Judge that the Métis and Indian peoples are distinct in that
the Métis were a distinct subset of the Aboriginal population.

[102]Later, at paragraph 544, the Judge wrote:

Both
in principle and in practice, one of the essential elements of the Indian power
was to vest in the federal government the power to legislate in relation to
people who are defined, at least in a significant way, by their native
heredity. As said earlier, the factor which distinguishes both non-status
Indians and Métis from the rest of Canadians (and has done so when this country
was less culturally and ethnicly diverse) is that native heritage - their “Indianess”.

[103]This paragraph reflects the Judge’s view that “Indianness”
is synonymous with native or Aboriginal heritage or indigenousness.

[104]Second, the interpretation that the Judge meant “Indian
heritage” to mean “Aboriginal heritage” or “indigenousness”, in my view
explains why, after separately defining non-status Indians and Métis, the Judge
grouped them together for the remainder of his analysis; they could be grouped
together because a person who met either definition would satisfy the
requirement of having a strong affinity for their Aboriginal heritage.

[105]Finally, at paragraph 117 of his reasons the
Judge held that for both non-status Indians and Métis their “Indianness” was
based on self-identification and group recognition. Then, at paragraph 127
when considering the Métis, he set out the test outlined in Powley for
determining Métis entitlement to section 35 aboriginal rights.

[106]Those three factors relate to self-identification
and group recognition.

[107]If the Judge intended that “Indian heritage” and
“Indianness” only related to First Nations heritage and culture, he would not
have recited the Powley test.

[108]Having concluded that the Judge meant Indian
heritage to mean indigenousness or Aboriginal heritage, and considering the
definition given by the Judge at paragraph 117 of his reasons, it follows that
the Judge considered the Métis to be a group of native or Aboriginal people who
maintain a strong affinity for their Aboriginal heritage or indigenousness
without possessing Indian status. The Métis Aboriginal heritage or
indigenousness is based upon self-identification and group recognition as
Métis, not First Nations. It follows from this that the Judge recognized the
Métis to be a distinct people.

[109]Properly understood, the Judge’s conception of
the Métis was not contrary to history or the decisions of the Supreme Court in Powley,
Cunningham or Manitoba Métis Federation.

[110]That said, I am not satisfied that it is
necessary to exhaustively or definitively define the term Métis in order to
determine whether the Métis people fall within the scope of section 91(24). The
Constitution does not define “Indian” and the Supreme Court did not define “Eskimos”
when determining they were included in section 91(24) in Re Eskimo Reference.

[111]It is sufficient that the Court not define the
term Métis in a manner that is contradictory with history or the jurisprudence
of the Supreme Court.

Blais

[112]In Blais, the Supreme Court found that
the Métis are not “Indians” under the hunting rights provision contained in the
Manitoba Natural Resources Transfer Agreement, incorporated as Schedule (1)
to the Constitution Act, 1930 (NRTA). To reach this conclusion the
Supreme Court referred to the same census prepared by the Hudson’s Bay Company
relied upon by the Supreme Court in Re Eskimo Reference. The census
demonstrated that at the time of Confederation the Eskimo were regarded as a
type of Indian. In Blais, the Supreme Court concluded that the same
document “illustrates that the ‘Whites and half-breeds’ were viewed as an
identifiable group, separate and distinct from the Indians” (at paragraph 27).
It followed that the Métis were not “Indians” for the purpose of the NRTA.

[113]The appellants argue that the Judge erred by
reaching the contrary conclusion in this case. The appellants also argue that Blais
illustrates that Re Eskimo Reference is authority for the proposition
the Métis are not Indians within the contemplation of section 91(24).

[114]The Judge distinguished Blais on the
ground that in that case the Supreme Court considered the meaning of “Indian”
in relation to a particular constitutional agreement as opposed to a head of
power (reasons, paragraph 541).

[115]In my view, Blais is distinguishable from
the present case on the following grounds.

[116]First, at paragraph 36 of its reasons in Blais,
the Supreme Court stated that it was leaving open for another day the issue of
whether the term “Indians” in section 91(24) of the Constitution Act, 1867
includes the Métis. The Judge did not err by failing to find Blais
decided this issue.

[117]Second, the findings of fact made at trial in Blais
are very different from the findings of fact made by the Judge in the present
case. To illustrate, in Blais, at paragraph 31, the Court found no basis
for interfering with the lower courts’ finding that, as a general matter, the
terms “Indian” and “Métis” were used to refer to separate and distinguishable
groups of people in Manitoba from the mid-19th century through to the period in
which the NRTA was negotiated and enacted (1930).

[118]In the present case the Judge found:

Prior to
Confederation, the term “Indian” was understood by the Fathers of Confederation
to include “half-breeds” (reasons, paragraphs 272 and 323).

The Fathers of
Confederation would have intended the word “Indians” in the Constitution,
and the power which went with it, to be a broad power to allow the federal
government to deal with the diversity and complexity of the native
population, whatever their percentage mix of blood relationship, their
economies, residency or culture (reasons, paragraphs 273, 308, 318, and
323).

The Aboriginal
population was mixed, varied and interrelated. It was not possible to draw
a bright line between half-breeds/Métis and Indians (reasons, paragraph
381).

[119]Finally, in Blais the Court considered
the philosophy or objectives lying behind section 13 of the NRTA. It found that
the protection afforded by section 13 was predicated on the view that Indians
required special protection and assistance. Rightly or wrongly this view did not
extend to the Métis.

[120]This is very different from the philosophy or
objective of section 91(24) as found by the Judge. Those findings are described
in paragraphs 36 and 37 above. The objectives of section 91(24) included
the need to control all native people and their communities in order to
facilitate the development of the Dominion and to pursue the federal government’s
plan to develop and settle lands in the North-Western Territory.

[121]Before turning to the next asserted error, for
completeness I will deal with the argument that Re Eskimo Reference
establishes that the Métis are not Indians within the contemplation of section 91(24).
There are three brief reasons why I do not accept this submission.

[122]First, as noted above, the Supreme Court
expressly left open in Blais the question of whether the Métis fall
within section 91(24). The Court reached this conclusion notwithstanding that Re Eskimo
Reference was an authority referenced by the Court in its decision.

[123]Second, the evidentiary record discussed by the
Court in Re Eskimo Reference would not permit a definitive conclusion
concerning the Métis. This is particularly so where the only geographic
territory considered was Rupert’s Land and the coast of Labrador.

[124]Finally, there is a passage in Re Eskimo Reference
which supports the inclusion of the Métis in section 91(24). At page 118 of
the decision Justice Cannon, writing for himself and Justice Crocket, wrote
that Sir John A. Macdonald and Sir Hector Langevin “always understood that the
English word ‘Indians’ was to be construed and translated as ‘sauvages’ which
admittedly did include all the aborigines living within the territories
in North America under British authority” (emphasis in the original).

(d) Did the Judge fail to follow the approach to
constitutional analysis mandated by the Supreme Court?

[125]In their written submissions the appellants
argue that the Judge erred by defining the limits of the constitutional term “Indians”
contained in section 91(24) in the abstract. The appellants’ written
submissions are confined to the Judge’s definition of non-status Indians. In
particular, the appellants assert the Judge erred at paragraph 122 of his
reasons by outlining the features of persons who could be granted status under
the Indian Act. The appellants say that in the absence of a challenge to
actual or proposed legislation a court should be limited to proposing a non-exhaustive
list of criteria to guide the interpretation of the term Indian.

[126]Given my finding that the Judge erred by issuing
the declaration in respect of non-status Indians, it is not necessary to
address the error asserted by the appellants in respect of the Judge’s
definition of non-status Indians.

[127]In oral argument the appellants submitted that
the Judge misapplied the living tree doctrine, as explained by the Supreme
Court in Reference re Same-Sex Marriage. As explained above, this
doctrine posits that the Constitution is a living tree which, by way of
progressive interpretation, accommodates and addresses the changing realities
of modern life. The appellants say the Judge erred in his application of
progressive statutory interpretation by failing to identify what changes
require a new view of who are included in section 91(24) of the Constitution
Act, 1867.

[128]The appellants’ submission is based on the
propositions that the Judge applied the progressive approach to the
interpretive exercise and that this approach was necessary because the Métis
were not included in section 91(24) at the time of Confederation. On a proper
reading of the Judge’s reasons, these propositions are incorrect.

Applicable
principles of statutory interpretation

[129]In Reference re Employment Insurance Act
(Canada), 2005 SCC 56, [2005] 2 S.C.R. 669, the Supreme Court set out the
principles of interpretation to be applied when considering the scope of the
powers assigned by the Constitution Act, 1867. In particular, a court
must refer to the way the power was described by the Fathers of Confederation
to identify its essential components.

The
Judge’s approach

[130]At paragraph 538 of his reasons, the Judge
accepted “that the purposive approach — the ‘living tree’ doctrine — is the
appropriate approach”. This is one source of confusion because the living tree
doctrine is an expression of the progressive, not purposive, approach to
interpretation.

[131]Notwithstanding, the Judge’s reasons evidence a
decidedly purposive approach to the interpretive exercise.

[132]There are no contemporary statements or records
concerning the purpose of section 91(24). In the absence of such statements or
records, the Judge properly made findings of fact about the content of section
91(24) and its essential components.

[133]The Judge made the following findings of fact:

•As early as 1818 the Métis were considered to be
Indians (reasons, paragraph 577).

•Prior to Confederation, the Fathers of
Confederation understood the term “Indian” to include “half-breeds” (reasons,
paragraphs 265 and 287).

•The Fathers of Confederation intended the word “Indian”
in the Constitution, and the power which went with it, to apply broadly so that
the government could deal with the diversity and complexity of the native
population, whatever their percentage of mixed blood, economy, residency, or
culture (reasons, paragraphs 273, 318, and 323).

•The relationship between the purpose of
Confederation (in terms of settlement and expansion) and the native people was
critical to Confederation (reasons, paragraphs 252 and 351).

•The lands occupied by natives would have to be
surrendered (reasons, paragraph 351).

•The purpose of section 91(24) was integral to
the central government’s plan to develop and settle lands in the North-Western Territory (reasons, paragraphs 353 and 354).

[134]These findings are inconsistent with the
submission that the Judge found the Métis were not included in section 91(24)
at the time of Confederation. As such, these findings are also inconsistent
with the application of the living tree doctrine, since no progression was
necessary.

[135]The Judge then went on to make a number of
findings of fact that were confirmatory of his view that the section 91(24)
power was intended to include the Métis. Those findings included the following:

•Immediately post-Confederation, persons referred
to as half-breeds were considered to be closely associated with “Indians” and to
be part of the problem that needed to be addressed by section 91(24) to permit
expansion, settlement and the building of the railway (reasons, paragraph 412).

•Early post-1867, half-breeds (as they were then
called) were considered to be at least a subset of a wider group of
Aboriginal-based people called Indians (reasons, paragraph 420).

•15 families of half-breeds living on the Rainy River adhered to Treaty 3. The government treated the half-breeds group as if it had
a claim to Indian title, and gave the group a reserve as part of the surrender
of that claim (reasons, paragraphs 424, 430, and 434).

•A reserve was established at St. Paul de Métis
for the exclusive use of the Métis people. This was found by the Judge not to
be a policy accident (reasons, paragraphs 437, 439, and 441).

•In 1894 Parliament amended the Indian Act
to broaden the provision dealing with persons who sold intoxicating liquor to an
Indian. The provision was amended to make it an offense to sell alcohol to any
person “who follows the Indian mode of life” (reasons, paragraphs 444, 446, and
447).

[136]Applying the purposive approach, and looking
primarily to the pre-and post-Confederation facts and the manner in which the
government dealt with the Métis, the Judge found the Métis were included in
section 91(24) (reasons, paragraph 525).

[137]Other factors support the conclusion that the
Métis were a people included in section 91(24) at the time of Confederation.

[138]Importantly, at least three iterations of
federal legislation relating to Indians could reasonably be read to have
included the Métis.

[139]In 1868, An Act providing for the
organization of the Department of the Secretary of State of Canada, and for the management of Indian and Ordinance Lands, 31st Victoria 2, c. 42 was
enacted. This legislation made the Secretary of State the Superintendent-General
of Indian Affairs. The statute dealt with matters such as the holding of lands
reserved for Indians, the surrender of Treaty lands, the application of monies
resulting from the sale of Indian lands and the penalty for giving or selling
liquor to Indians.

[140]Section 15 of the legislation was entitled “What
persons only shall be deemed Indians” and stated “[f]or the purpose of
determining what persons are entitled to hold, use or enjoy the lands and other
immovable property belonging to or appropriated to the use of the various
tribes, bands or bodies of Indians in Canada, the following persons and classes
of persons, and none other, shall be considered as Indians belonging to the
tribe, band or body of Indians interested in any such lands or immoveable property:”
The second enumerated class of persons deemed to be Indians was “[a]ll persons
residing among such Indians, whose parents were or are, or either of them was
or is, descended on either side from Indians or an Indian reputed to belong to
the particular tribe, band or body of Indians interested in such lands or immoveable
property, and the descendents of all such persons”.

[141]This class of persons would include half-breeds
if they resided among Indians and their descendents. Since the Act did not
impose a generational limit, persons descended from “half-breeds” would also
have been considered Indians, if their parents met that definition. To that
end, it stands to reason that a community of half-breeds could have arisen in
which all of its members were considered “Indians”. And since the Act does not
define what constitutes a “body of Indians”, this definition could logically
include Métis living in their own communities, or any Métis who resided among
Indians and their descendents.

[142]Along the same lines, An Act for the gradual enfranchisement
of Indians, the better management of Indian affairs, and to extend the
provisions of the Act,31st Victoria, c. 42, S.C. 1869, c. 6 was
passed shortly after Confederation. While this Act did not define the persons
it applied to, section 4 of this Act, dealing with the division of annuity
money, demonstrates the Act applied to “half-breeds”. Section 4 provided
that:

4. In the
division among the members of any tribe, band, or body of Indians, of any
annuity money, interest money or rents, no person of less than one-fourth
Indian blood, born after the passing of this Act, shall be deemed entitled to
share in any annuity, interest or rents, after a certificate to that effect
is given by the Chief or Chiefs of the band or tribe in Council, and
sanctioned by the Superintendent General of Indian affairs.

[143]Finally, An Act to amend and consolidate the
laws respecting Indians, The Indian Act, 1876, S.C. 1876, c. 18 specifically
defined the term “Indian” to include half-breeds, subject to some provisions.
Thus, an Indian included any child of any male person of Indian blood reputed
to belong to a particular band. One proviso was that “no half-breed in Manitoba
who has shared in the distribution of half-breed lands shall be accounted an
Indian; and that no half-breed head of a family (except the widow of an Indian,
or a half-breed who has already been admitted into a treaty), shall, unless
under very special circumstances, to be determined by the
Superintendent-General or his agent, be accounted an Indian, or entitled to be
admitted into any Indian treaty.” These exceptions prove the rule that
half-breeds could be considered Indians, and that apart from accepting scrip,
no distinction was drawn between half-breeds maintaining Métis culture and
those adopting a First Nations way of life.

[144]Also, in my view, section 35 of the Charter
confirms that the Métis were included within section 91(24) from the time
of Confederation. Subsections 35(1) and (2) of the Charter are repeated for
ease of reference:

35. (1) The existing aboriginal
and treaty rights of the aboriginal peoples of Canada are hereby recognized
and affirmed.

(2) In this Act, “aboriginal peoples
of Canada” includes the Indian, Inuit and Métis peoples of Canada.

[145]In oral argument, counsel for the appellants
conceded that section 35 confirms that the Métis are Aboriginal, that they are in
a fiduciary relationship with the Crown, and that the Honour of the Crown is
engaged in its dealings with the Métis. These concessions are consistent with
the decision of the Supreme Court in Manitoba Métis Federation.

[146]Tellingly, counsel for the appellants also
conceded that it would be anomalous for the Métis to be included as Aboriginal
peoples for the purpose of section 35 of the Charter, and to be the only
enumerated Aboriginal peoples not included within section 91(24).

[147]This anomaly disappears when section 91(24) is
interpreted to have included the Métis from the time of Confederation.

[148]In the result, there is ample evidence to
support the view that Métis were considered within section 91(24) at the time
of Confederation. A progressive interpretation was, therefore, unnecessary, and
the Judge did not err by failing to address the social changes that would
underlie such an interpretation.

(e) Did the Judge grant a declaration that will create
uncertainty about the respective jurisdiction of Parliament and the provincial
legislatures?

[149]The appellants present speculative, in
terrorem arguments that granting a declaration that the Métis fall within
section 91(24) will make provincial legislation vulnerable to challenge and may
also have a detrimental effect on the ability of provincial governments to
legislate in the future.

[150]I disagree. In Reference re Employment
Insurance Act (Canada), the Supreme Court observed that the power of one
level of government to legislate in relation to one aspect of a matter takes
nothing away from the power of the other level to control another aspect within
its own jurisdiction (Supreme Court reasons, paragraph 8). In my view, this is
a complete answer to the appellants’ argument. This is particularly so where
the Judge found the declaration will have a real and practical utility.

(f) Conclusion
as to the validity of the declaration as it relates to the Métis

[151]The appellants do not challenge any of the Judge’s
detailed findings of fact. I have considered each of the legal errors posited
by the appellants and have concluded they have not demonstrated any error that
warrants intervention. I therefore conclude that the declaration, limited to
the Métis, is founded in fact and in law.

(v) The cross-appeal: Did the Judge err by refusing to issue
the second and third declarations?

(a) The standard of review

[152]As set out at paragraph 62 above, declaratory
relief is a discretionary remedy. The test to be applied on appeal is whether
the Judge gave sufficient weight to all of the relevant considerations.

(b) The
asserted errors

[153]The Judge refused to issue the second and third
declarations for the reasons set out at paragraphs 60 and 61 above.

[154]The respondents as appellants by cross-appeal
say it was an error of principle to refuse the second declaration because the
terminology used in its request has changed over time. Essentially, they argue
that at the time the claim was framed, there was no distinction between a
fiduciary duty and a fiduciary relationship. In turn, the Judge is said to have
failed to properly consider the substance of what was requested: a declaration
that the Métis and non-status Indians are in a fiduciary relationship with the
Crown.

[155]No particular error is asserted in connection
with the third declaration.

(c) Did
the Judge err in refusing the second and third declarations?

[156]On the reasons given, the Judge made no error in
refusing the second declaration. The Judge recognized that the Crown has a
fiduciary relationship with Aboriginal people both historically and pursuant to
section 35 of the Charter (reasons, paragraph 604). He also found that a
declaration made in the absence of a specific fact scenario would lack utility.

[157]I agree. This is particularly the case where,
after the release of the Judge’s reasons, the Supreme Court confirmed that the
Métis are in a fiduciary relationship with the Crown (Manitoba Métis
Federation).

[158]No error is alleged with respect to the third
declaration. Again, I agree that the declaration was properly withheld,
substantially for the reasons given by the Judge.

7. Conclusion
and costs

[159]For the above reasons, I would allow the appeal
in part by deleting reference in the declaration to non-status Indians. I would
restate the declaration as follows: The Court declares that the Métis are included
as “Indians” within the meaning of section 91(24) of the Constitution Act,
1867.

[160]I would dismiss the cross-appeal.

[161]Finally, I would reserve the issue of the costs of the appeal and
cross-appeal. Those costs, between the appellants and respondents, if not
agreed, may be addressed in writing. The parties are requested to suggest a
schedule for serving and filing written submissions on costs, such submissions
not to exceed 10 pages in length.

“Eleanor R. Dawson”

J.A.

“I agree.

Marc Noël J.A.”

“I agree.

Johanne Trudel J.A.”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

Docket:

A-49-13

STYLE OF CAUSE:

HER MAJESTY THE QUEEN as represented by THE MINISTER
OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT and THE ATTORNEY GENERAL OF
CANADA v. HARRY DANIELS, GABRIEL DANIELS, LEAH GARDNER, TERRY JOUDREY and
THE CONGRESS OF ABORIGINAL PEOPLES and ATTORNEY GENERAL OF ALBERTA, MÉTIS
SETTLEMENTS GENERAL COUNCIL, GIFT LAKE MÉTIS SETTLEMENT, MÉTIS NATIONAL
COUNCIL, MANITOBA MÉTIS FEDERATION, and MÉTIS NATION OF ONTARIO